Thursday, 18 December 2014

Imagine a world where births and deaths are occurrences that happen without the normal pomp and circumstance. Imagine that it is merely marked with the filing of official papers.

Sad isn't it, to have a birth that is noted only on the birth certificate; or a funeral where the body goes into the ground (or the crematorium) with only the death certificate to stand as witness.

That's what is happening to the legal profession in Malaysia. The births of new lawyers are no longer celebrated by the profession. It is a cattle call. An assembly line. To be endured, to be taken advantage of by getting free food.

And no longer is the death of a lawyer remembered with the reverence of a proper reference, no matter how insignificant his or her contribution was to the profession. References are seemingly a waste of time, to be "kept-in-view," while the business of law happens.

That is sad.

Yes, the profession is now experiencing a huge number of births every day. Some worry there is already a glut of new lawyers.

So what? Isn't a new birth cause for joy? The baby may be ugly, not so bright, handicapped even - but it still has potential. Yes, it may take up space in the house, eat your food, cry and complain - but that baby is still family. And as you grow old, that baby grows up to take your place. That is the circle of life. That is inevitable.

Logically it makes no sense for lawyers already in practice to celebrate the birth of new lawyers - they will eventually "steal" your business. But then, the practice of law is not really a business, is it? It is often touted, and it bears repeating, "A lawyer is a professional," and that means acting against your own interest when it is the right thing to do.

The businessman-lawyer would be absolutely silly to welcome a new entrant into the profession. But surely, somewhere deep down, beneath all that suspicion, paranoia and one-upmanship lies the spirit of the professional who rejoices that another possible great lawyer is born, ready to pick up the mantel when the old passes away.

Surely.

References are times to pause and take stock of our lives. In the hurly-burly of practice, lawyers tend to forget that we are human, susceptible to every human condition that befall all mortals. We get sick, we get into accidents, we wear our pants one leg at a time ... and we die. Is it too much to ask to remember our fallen brothers and sisters once a year during a reference? To bring our lives to a pause to remember theirs? To comfort their family (and remind ourselves) with the words, "He was my brother, she was my sister. We believed in the law. He fell first. We remember his journey. He was of the brotherhood, a comrade - a member of the Bar."

Or is that game of golf too enticing for this?

The death of tradition is not marked by thunder and lightning. It slowly slips and fades away into the night as we slowly, but surely, think our lives, those little pockets in the infinity of time we call OUR lives, as more important than the cause we undertook when we said to our younger more naïve selves, "I want to be a lawyer!"

We all believed in the cause once, surely. You would not be reading this far, dear brother, dear sister, if you do not believe in the law and the fraternity that is the Bar.

Come, come witness the future birth of new lawyers.

Come, pause at the passing of our own, once a year.

The world either hates us or fears us ... and almost always wants us to give it more discounts. That is the world. That is the way of the world.

Amongst ourselves, let us treat each other with respect, for we are family. Let not our traditions go into that abyss. Add on to them. Modify them, if you like. But celebrate the births, and mourn the deaths. And then go back to your chambers, to the daily grind of practicing the law. For that is who we are - members of a noble fraternity.

"Johor deputy CID chief Assistant Commissioner Dennis Lim said the case was being investigated under Section 298A of the Penal Code for causing disharmony, disunity, or feelings of enmity, hatred or ill-will on grounds of religion."

THE LAW:-

Section 298A - The then Supreme Court in Mamat Daud [1988] 1 CLJ (Rep) 197 did rule, by a majority of 3-2 (majority decision of Salleh Abas LP, George Seah, and Mohd Azmi, with Hashim Yeop Sani and Eusoffe Abdoolcader dissenting) that section 298A of the Penal Code is INVALID and therefore NULL and VOID and of NO EFFECT and that order took effect from 13 October 1987.

MY OPINION:-

It is a waste of the time for the PDRM to investigate an offence pursuant to a law - s.298A Penal Code - that has been declared by the then highest court of Malaysia to be of "no effect".

RELATED ISSUES:-

In light of what has happened at Tangkak, Johor, I reread the 10-point solution explanation by Idris Jala. Two key points are as follows:-

1. "The act of “propagation” is the crux of the matter. While the 10-Point Solution allows Christians and churches to use the ALKITAB, which contains some of the 34 prohibited words, the 10-Point Solution does not condone the ACT OF “PROPOGATION” of non-Muslim faiths to Muslims."

2. "In summary, the 10-Point Solution permits the ALKITAB, conditionally in Peninsular Malaysia but unconditionally in Sabah and Sarawak."

Fact 1: A hymnal is not an Al-Kitab.

Therefore, the 10-point solution is in no way applicable to the facts of this case.

Nothing in the given facts of the case indicate that Cyril was doing anything more than ordering copies of the hymnal to be made at the photocopy shop - to be used during Christmas by his Orang Asli congregation (who use BM as the language of service), i.e. there was NO PROPOGATION of Christianity by Cyril to Muslims.

Note: Article 11(4) of the Federal Constitution is crystal clear: "STATE LAW and in respect of the Federal territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the PROPOGATION of any religious doctrine or belief among persons professing the religion of Islam."

Fact 2: There does not seem to be a similar provision in Johor that prohibits the use of the term "Allah" by non-Muslims (as there is in Selangor),

I can hazard a guess, in my limited capacity, of what might happen with the Johor hymnal case.

The most likely conclusion would be the eventual return of the hymnals to Cyril Mannayagam.

There may perhaps be, in the future, an amendment to the Johor Enactment to specify words that cannot be used by non-Muslims, as has been done in Selangor (see s.9 read together with the 1st Schedule of the Selangor Enanctment).

Sunday, 5 October 2014

Firstly, let me start with the fact that I have the utmost respect for Datuk Paduka Marina Mahathir. To me, she is a shining example of what it is to be Malaysian. Her work over the years stands as a testament to the strength of her character, and the fullness of her heart.

Therefore, it was shocking for me to read her views regarding statutory rape in her "Musings" column titled "A mockery of statutory rape law", which appeared on September 11, 2014 in The Star.

In it, she started with 2 stories involving 14-year-old girls. It then went to section 376 of the Penal Code, the cases of Nor Afizal Azizan and Chuah Guan Jiu, a comment about movies that use rape as a plot device, and then she touched on the Kota Kinabalu case of Riduan Masmud (though his name was not mentioned), and a somewhat messy denouement.

I must protest.

Lumping together the cases of Nor Afizal Azizan, Chuah Guan Jiu and Riduan Masmud grossly glosses over the different facts of each case (save for the most prominent one, i.e., that the girls in all 3 cases were under-16), and the prevailing law of the land.

Yes, rape is about violence. That is true. Yes, statutory rape (sex with a minor who is legally not able to give consent to the act of sex) is both illegal and reprehensible. But the situation is not as black and white as the column suggests.

Let's start with consent. In Malaysian law, section 375 of the Penal Code (PC) says that sex with a woman without her consent (among other things) is rape. If consent is obtained by threats or deception, it is not a valid consent; and if sex ensues, it is rape. This is the simple summary of the law on rape.

If the woman is under-16, then the law deems any sexual intercourse with her as "rape," even if she consented. That is why the term used is "statutory" rape. It means that under statute (the law passed by Parliament), when a girl under-16 says "yes" to sex, the law still considers it rape, and the man who has sex with her can be charged with rape (and most likely will be found guilty if the element of "penetration" is proven).

This issue of consent affects both conviction and sentencing.

For conviction, the key question during a statutory rape trial is, "Did the man have sex with a girl under-16?" If the answer is yes, then he will be convicted of statutory rape.

After the issue of conviction is dealt with, the issue of sentencing arises. The important issue in sentencing is this: What is the appropriate sentence for the man who has been convicted of statutory rape?

The issue of "adequacy of sentence" often riles the public up for cases of statutory rape. Most of the time, he perception is, "that's too lenient." This perception is fuelled by the - sometimes incorrect - view that the young girl was a victim of the lust of an older man who took advantage of a naïve and innocent young girl. That is the usual view that plays in the our minds when the term "statutory rape" is mentioned.

It is not an accurate view.

It does not always reflect reality.

Not all statutory rape cases are about a girl/woman walking down the road, getting pulled into the bushes/vehicle, getting raped and beaten and then left like garbage after the act. These kinds of rape (whether statutory or not) would attract sentences that are retributive or deterrent. No one would argue if the court imposes a sentence of imprisonment (and caning) closer to the maximum in this scenario. Normal reasonable members of society would want it. I would want it.

But what of the statutory "rape" that happens when, say, the girl is 15, the boy is 16, they love each other, and start experimenting with sex? No violence, no coercion; just hormones. This happens everyday. The only reason the word "rape" is used is because under the laws of Malaysia, the girl cannot give consent because of her age, and therefore any sexual encounter she has will be deemed as "rape" in the eyes of the law. The boy has no defence. He is guilty of "rape" as defined by the law.

This is where the element of consent, and judges' discretion, comes into play: during sentencing. The law recognizes that an offence has been committed. The boy is guilty of rape. He will have a criminal record to his name. That's a given. But whether he will be given a slap on the wrist, or community service, or spend time in reform school, or go to prison (with or without caning) depends on the 6 key factors listed below (among other factors that I will not list in full here, in the interest of brevity). The judge will weigh both the aggravating and mitigating factors of the case, and decide what is the most appropriate sentence in light of the particular facts in that case.

Some key factors that the court will consider are as follows:-

Was there violence used?

Is this his first offence?

What is his age? [Children, i.e. those under 18 years old, get special consideration from the court because they are governed by the Child Act 2001 which has the stated purpose of "rehabilitation" in the preamble.]

Did she get pregnant? Did she give birth? What happened to the child?

Were they boyfriend and girlfriend?

Was the victim willing (Did she give her consent)?

For example, in Nor Afizal Azizan and Chuah Guan Jiu, both girls willingly had sex with the men. There was no force nor violence. And the men were not all that much older than the girls - Nor Afizal was 6 years older while Chuah was 10 years older. These factors can, in law, be valid reasons why the sentence imposed on the boys/young men would be lenient rather than harsh.

For the record, only Nor Afizal was ultimately given a bond of good behaviour. Chuah Guan Jiu, who was initially allowed the bond by the Sessions' Court, was sentenced to 5 years imprisonment by the High Court on an appeal by the prosecution. Both have criminal records for rape now. Only Nor Afizal did not go to jail.

To further illustrate on the issue of adequacy of sentence for statutory rape cases, section 376(2)(e) PC specifically states that, for rape, there must be a minimum sentence of 5 years imprisonment if the girl is under-12. However, section 376(2)(d) PC, by implication, provides that if the girl is under-16 (i.e. between 12 and 16) and she consented to the sex, then the court is not obliged to imposed that minimum 5 years sentence of imprisonment. The Penal Code itself makes the distinction between the different ages of teenage girls and their ability to consent. This is a good thing. It acknowledges that young teens (under-12) and older teen girls are different, and it allows judges the discretion in sentencing when the victim is an older teen girl.

The judgment of the Court of Appeal in the case of Nor Afizal also took pains to note that,

"Each case depends on its own facts and it is neither feasible nor desirable to attempt to lay down any fixed sentence that is meant to govern this type of cases. Therefore, these observations made by this court should not be misconstrued as intending to have blanket application or applying to all cases involving young offenders charged with the similar offence ... In the present case, if the appellant had been older, or he had used force, coercion or violence on the victim, or he had tricked the victim into submitting to him or he had not cooperated with the police and he had not shown any remorse to his act or there is no guarantee that he will not be committing the same offence in the future, we would not have any hesitation, as we have done in many other cases of similar nature, to impose a lengthy custodial sentence. But before us is a young boy who was extremely remorseful for what he had done and had thrown himself to the mercy of the court by pleading guilty to the charge."

Trial judges in statutory rape trials have, and should always have, a wide discretion because they can appreciate the various factors that come into play for sentencing for different accused in statutory rape cases.

When we consider the case of Riduan Masmud, the factors are different. The girl did not consent. He was much older than her - she was 12, he was 41. He even tried to pay off her father. She had to stop her schooling. These factors weighed very heavily against him and that was why upon conviction he was sentenced to 12 years imprisonment plus 2 strokes of the cane. (He is currently free on bail as has appealed to the High Court against both conviction and sentence. The appeal is fixed on September 29.)

One other factor that most lay people do not understand are the principles of sentencing. In brief, there are different reasons for sentencing. If a crime is violent and there are many aggravating factors (like cruelty, repeat offender, or premeditation), or protection of public interest, then sentences would be retributive or deterrent - for example the death penalty for murder, kidnapping for ransom, or drug trafficking. A long jail sentence, usually with whipping, await persons convicted of armed robbery, snatch thefts, or rape that involves violence.

But if the perpetrator is under-18 then, in law, he is a 'child'. The Child Act 2001 comes into play and the 2 guiding principles are that 'sentences' [technically 'order' since even the word 'sentence' is barred from being used by the Act, see section 91(2)] have to be rehabilitative, and in the best interest of the child. A child can still turn over a new leaf. A child can still be given a second chance.

Applying this to the above hypothetical situation where the girl is 15, the boy is 16, the boy would probably be given a bond of good behaviour, and not be sent to jail. This is, to me, a proper sentence. This is a proper resolution to the simple situation of hormonal teenagers in love and experimenting with sex. To put him in jail would doom him needlessly because our collective national morality is "offended" by the thought of hormonal teenagers in love actually experimenting with sex.

So far, my focus has been on the accused. What of the victim of rape/statutory rape? Does the court not think of her before passing sentence? The law remembers her. Upon conviction, there is a Victim Impact Statement that will be made by the victim, or her family, that the court must consider before passing sentence on the man [see section 173(m)(ii) Criminal Procedure Code].

The public has a right to be angry with the crime of rape. It is a heinous crime. It has even been classified as a war crime. But there are varying shades of the offence/crime of rape - how it happens, who are the individuals, what are their motivations, and what is the conclusion that is best in the particular circumstances of each case.

Yes, we should be angry at rape being the punch line of a joke. That should not be acceptable at all. Yes, we should throw the book at old Casanovas/Lotharios who prey on young girls with impunity.

But we should also accept the fact that fully consensual sex with no violence/threats between experimenting teenagers should not attract the same punitive sentence as a rape where the girl/woman was walking down the road, got pulled into the bushes/vehicle, was raped and beaten and then left like garbage after the act. The 2 situations are different. – September 28, 2014.

First appeared at: http://www.themalaysianinsider.com/sideviews/article/statutory-rape-cases-not-black-and-white-jason-kay

Wednesday, 24 September 2014

I love my country.
I love the law.
That's why I take the positions/stands that I take.

Malaysians can be stupid, or annoying, or whiny.
Accept them anyway. They are our countrymen.
Talk to them. Gently.
Agree to disagree, if you must, but be POLITE.

Politeness is ketimuran. That's us - you and me. We are not Americans. We are not Westerners. We are not Japanese. We are not Arabs.
We are South-East Asians. Let's remember to DO and SAY things our way. Gently.

Let's remember that even amongst ourselves, there are differences in the way we communicate.
Allow a wide berth.
Different communities communicate differently. Mix. Observe. Ask. Learn. Improve.

If we want to be treated like adults, stop speaking like spoiled children. You (and I) change first. The country will follow.
Maybe not today.
Maybe not this year.
But I'm setting my goal as, "before I die."

I want a strong, smart, resilient, and cultured Malaysia.
I'm aiming for that.
Join me, or ignore me.
But quit it with the doublespeak and sarcasm.(That time has passed. For me, anyway.)

Thursday, 20 February 2014

Najib Razak should invite Ibrahim Ali to be part of the National Unity Consultative Council (NUCC), as co-head if possible. Because I've seen the partial list of members of the NUCC, and I can pretty much guess what their report would be like in 2 years' time. I doubt Ibrahim Ali would like their report.

To me, if Ibrahim Ali does not like (or is opposed to in a big way) that intended report, the NUCC would just be wasting time coming up with it. Because if Ibrahim Ali opposes the NUCC report, then that is a VERY IMPORTANT ELEMENT.

Ibrahim Ali leads PERKASA, which is 420,000 member-strong. That is a whole lot of people that could be opposed to whatever the NUCC may report in 2 years' time (I'm just assuming, but it's an educated assumption of what the NUCC will say).

So, why not just SAVE the TIME and EFFORT, and PUT IBRAHIM ALI AS A MEMBER OF THE NUCC NOW, and let him and the other current members trash out the issues with each other NOW. THEN, in 2 years, we will have a report that will probably be more GROUNDED IN REALITY, and not merely a statement of hope and wish and Pollyanna-ish dreams.

Because Najib Razak had given us 1Malaysia some time back. And I don't hear much about it now.

[I just don't like wastage of time and effort (and paper) for the intended report.]

Jason Kay

20 February 2014

"I have established the National Unity Consultative Council, which will report to the Cabinet with recommendations on what we can do to bring Malaysians closer together."

- Najib Razak on 31 December 2013

http://www.pmo.gov.my/?menu=news&page=1729&news_id=12368&news_cat=4

The exchange of thoughts via media between Ibrahim Ali and NUCC in February 2014 - http://www.themalaysianinsider.com/malaysia/article/unity-council-chief-rebukes-perkasa-says-aim-to-restore-racial-religious-ha